Given the substantial and growing scientific literature on implicit bias, the time has now come to confront a critical question: What, if anything, should we do about implicit bias in the courtroom? The author team comprises legal academics, scientists, researchers, and even a sitting federal judge who seek to answer this question in accordance with “behavioral realism.” The Article first provides a succinct scientific introduction to implicit bias, with some important theoretical clarifications that distinguish between explicit, implicit, and structural forms of bias. Next, the article applies the science to two trajectories of bias relevant to the courtroom. One story follows a criminal defendant path; the other story follows a civil employment discrimination path. This application involves not only a focused scientific review but also a step-by-step examination of how criminal and civil trials proceed. Finally, the Article examines various concrete intervention strategies to counter implicit biases for key players in the justice system, such as the judge and jury.

Why can’t some people stop themselves from doing things that are bad for them? Why can’t some people stop themselves from doing things that hurt others? These questions have puzzled philosophers, economists, and psychologists for centuries. Professor Joshua Buckholtz will discuss these issues in the context of his work at Harvard’s Systems Neuroscience of Psychopathology Lab, where he seeks to understand how genes and environments affect brain chemistry and function to influence variability in human self-control.

It wouldn’t surprise people to hear that it’s diffi­cult to tell what the Botoxed are feel­ing, but your study found that the Botoxed have lit­tle idea what we are feel­ing?

Yes, we always as­sume that you can’t tell what the Botoxed people are feel­ing because their faces are somewhat par­alyzed and can appear frozen, but what is less intuitive is that be­ing injected with Botox impairs their ability to under­stand what oth­er people around you are feel­ing.

To demonstrate this you asked women to look at photographs of people’s eyes and match them to human emotions…

Yes, it’s called the “Reading the mind in the eyes test“, and it’s sometimes giv­en to people on the autism spectrum. The people who had a Botox treat­ment in the pre­vi­ous two weeks were not as accurate as our con­trol group, who had been treated with Restylane – a skin filler – whose results were similar to untreated adults.

Why did you choose a con­trol group who had used filler, rather than a random group?

We wanted to match the two groups on ev­ery­thing we could except that one had the paralys­ing agent and the oth­er hadn’t. The Restylane group are demo­graph­ically similar to the Botox group – in terms of age and gender, socio-eco­nom­ic status, and had the same concerns with looking good. So if we got a random group of people who would nev­er have one of these cosmet­ic procedures then they could differ in a lot of oth­er ways. This way we made sure that we were just isolating the fact that Botox is

the cause.

The study talks about “embod­ied cog­nition” – could you explain?

This is the idea that the way we think and feel is grounded in our bod­ies. The way we under­stand oth­ers’ emotions is to expe­ri­ence those emotions our­selves. We do this with facial micro-mimicry. So if you are winc­ing in pain I im­me­diately do a micro-wince, and that sends signals to my brain that this per­son is expe­ri­enc­ing pain, and by expe­ri­enc­ing it my­self I now under­stand what you are go­ing through.

So Botox messes with our embod­ied cog­nition?

Yes, it’s interfering with that first step, which is mimicking facial ex­pres­sions and that’s what sets the whole thing off. If you can’t mimic some­one’s wince, your brain isn’t go­ing to be sent the same message – that this per­son is expe­ri­enc­ing pain – so you end up not be­ing as accurate and not re­ally under­standing the emotion.

If your empa­thy skills are inhib­ited by Botox what out­comes might that have for your day-to-day life?

My collab­orator, David Neal, was initially inter­ested in looking at the consequences for romantic relation­ships. Say if you’re married, you get Botox and then if you are not able to under­stand whatyour partner is feel­ing any more, it could lead to romantic dissatisfaction. We needed to see the ba­sic ef­fect before looking at some downstream consequences for marital satisfaction. This is maybe what we will study next.

So some­one could have Botox to look better, say for go­ing on dates, but then they find there’s no “connection”…

Absolutely. The irony is that having Botox to look better and be more attractive may make you less attractive in some ways, because you’re not empathis­ing with oth­ers so well.

So are the ben­efits of Botox overrated?

I know there’s been some research showing that Botox can help people who are de­pressed feel better. So I wouldn’t want to say there aren’t some pos­itive ben­efits people gain from feel­ing better about them­selves, feel­ing more attractive, feel­ing younger, but this is one neg­ative to point out to people. Some people will think, “Fine, I’d rather not empathise.” It’s not like Botox makes you completely un­able to under­stand any emotions in oth­ers, but it def­i­nitely reduces your capacity to under­stand those emotions.

The idea for the study came from a paper that said long and happily married couples began to resemble

Like this:

For The Situationist, Sabreena El-Amin (Harvard Law School student and President of the Student Association for Law and Mind Sciences (SALMS)), has authored the following legal analysis of the Trayvon Martin shooting and situationist analysis of the “stand your ground” doctrine. We are pleased to publish it and look forward to more contributions from Sabreena and other members of SALMS.

The Trayvon Martin incident is of particular importance to me: not only as a Black person, not only as a law student, not only as a mother, but as a big sister. My younger brother is currently attending school at Barry University in Miami, Florida. He, like myself, loves Arizona Ice Tea. We are also both big fans of Skittles, though we have a particular preference for the sour kind. Most importantly, we both wear hoodies. I am now more nervous than ever for my brother: a 19-year-old black man walking the streets of Miami with a camera. With laws like the “Stand your Ground” statute, vigilantes like Zimmerman are free to roam the streets in Florida, singling out young black men and killing them seemingly without repercussions.

My argument will focus on two main points: 1) Zimmerman should have been arrested as the prosecution will likely be able to meet their burden of proof that his action was not in accordance with the statute; and 2) the Stand Your Ground statute should be repealed because a) it encourages armed individuals to respond to situations violently and b) it sanctions the attack of Blacks. I will begin the article by outlining the facts as I know them. I understand that there are several different fact patterns floating around and the story is being developed daily. My arguments will be based solely on the facts mapped out below. I will continue by discussing why the facts would support the prosecution’s case, if one were to be brought, focusing mainly on a piece by Governor Granholm of Michigan. I will then go on to discuss the “Stand Your Ground” statute based on two psychological studies that show the statute endorses more violence than is reasonably necessary.

Facts*

Trayvon Martin, a 17-year-old Black male, was walking to his father’s home in a gated community in Sanford, FL after returning from a 7-Eleven convenience store. En route, 28-year-old self-appointedNeighborhood Watchman, George Zimmerman, spotted Trayvon and telephoned police that there was a suspicious young black man walking around. Zimmerman informed the police that the young man looked like he was on drugs and appeared to be reaching for something in his waistband. Initially Zimmerman claimed that the young man was coming right at him, and then that Trayvon was getting away. Zimmerman complained that “they” always get away. Dispatcher informed Zimmerman that they did not need him to follow Trayvon and Zimmerman said okay. Several residents of the area called in shortly after Zimmerman’s call to report that they heardscreaming. In some cases, callers reported a black male lying on the ground. Each caller also heard gun shots and heard the screaming stop. One caller reported that there was a man in a white shirt on top of someone lying on the ground.

Police collected Trayvon’s body, tested him for drugs, ran a background check, labeled him John Doe and placed him in the morgue where he would lie for over 24 hours before he was identified. Trayvon was unarmed and in fact only had a can of Arizona Ice Tea and a bag of Skittles. Zimmerman was questioned after the shooting, but never arrested. Zimmerman weighed 250 pounds and had a history of vigilantism.

Zimmerman claims that he shot Trayvon in self defense. Florida has a statute (Fla. Stat. § 776.013, also called the “Stand Your Ground” statute) which states (in relevant part):

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

(2) The presumption set forth in subsection (1) does not apply if:

(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or

(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or

(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or

(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

Zimmerman’s claims he was justified in his use of force based on this statute. It is not clear which clause Zimmerman’s defense is connected to.

Zimmerman has, since the incident, secured legal counsel. Zimmerman’s lawyer asserts that Zimmerman is not a racist and that he in fact mentors Blacks. His lawyer also stated that Zimmerman is currently in hiding, but has not fled the country. According to Zimmerman’s father, Zimmerman identifies as Hispanic.

Currently, Florida Governor Jed Bush does not believe Zimmerman’s actions are covered by the statute. There is a Department of Justice investigation in regards to the failure of the Sanford Police Department to arrest Zimmerman, President Obama has called for justice for Trayvon, and Sanford’s chief of police has stepped down. People across the country are expressing their distaste for the response to Trayvon’s murder and are, via protest, Facebook, articles, etc., calling for “Justice for Trayvon”.

Justice for Trayvon: Bringing Charges against Zimmerman

The “Stand Your Ground” statute essentially creates a presumption of self-defense in certain situations. Zimmerman has yet to be arrested because authorities do not believe there is enough evidence to rebut this presumption. I would like to focus this aspect of my piece on the following arguments: a) the facts of the case do not support a claim of self defense alleged pursuant to Fla. Stat. § 776.013(3) as Zimmerman appears to have been the attacker and not the victim, and b) the facts of the case do not support a claim of self defense pursuant to Fla. Stat. § 776.013(1) as Trayvon was unarmed and Zimmerman was likely acting unlawfully in his pursuit of Trayvon by misleading officials. Admittedly, only Zimmerman knows exactly what transpired during his altercation with Martin, and thus this argument may be moot after Zimmerman’s account becomes public.

Section 3 of the “Stand Your Ground” statute allows someone who is being attacked to respond with force and does not require them to first attempt to flee. Under a possible account of the facts, Zimmerman’s actions were self defense because he was attacked by Trayvon. Michigan Governor Jennifer M. Granholm wrote a piece on March 21, 2012 outlining several reasons why this account is unsupported by the facts as publicly known. In her piece Governor Granholm discusses five key pieces of evidence which refute Zimmerman’s claim:

1.The call from Zimmerman to law enforcement, and the officers telling Martin not to pursue. Zimmerman whispers what many have described as a racial slur under his breath.

2.There is a 911 call where you can hear a voice yelling for help and a firearm shot.

3.Trayvon’s father identified his voice on that 911 call on Al Sharpton’s Politics Nation program on MSNBC.

4.The account of the girlfriend, who says Trayvon told her by cellphone that he was being followed.

5.Trayvon was not armed and weighed between 75-100 pounds less than Zimmerman.

The evidence that we know of — the public evidence — establishes that Zimmerman was the pursuer, and not the victim.

In addition to this evidence, a 9-11 caller reported a man in a white shirt on top of a man lying on the ground. Another caller reported a man lying on the ground screaming “Help” and hearing gun shots go off before he got the chance to go to the man for help. Trayvon’s parents have identified this voice as their sons on the tape. Zimmerman, however, claims that this is his voice, but in connection with the other evidence (e.g., that he was the heavier of the two and that Trayvon was unarmed), this will likely be refuted. Based on the facts as alleged, the situation seems to have been initiated by Zimmerman. Even if Trayvon fought back after being pursued, his actions were justified based on the same statute that Zimmerman is currently hiding under.

Section 1 of the “Stand Your Ground” statute creates a presumption of self defense if a person is doing something unlawful and the person using force knows or reasonably believes that an unlawful act is occurring or about to occur. There has been some discussion at my law school that if Zimmerman asserts that he witnessed Trayvon about to break into someone’s home then Zimmerman may likely have a claim. I think this is unlikely for two reasons. First, Trayvon was unarmed and, based on all available evidence, innocently walking home from the convenience store. In order for the presumption in section 1 to be triggered, the attacked must have been in the process of committing certain crimes. There has been no evidence advanced indicating that Trayvon was participating in any crime. In fact the evidence points to Trayvon being engaged in innocent activity. Second, section (2)(c) asserts that this presumption is unavailable if the attacker is engaged in an unlawful activity at the time of the attack. As the 911 tape shows, Zimmerman was told not to follow Trayvon and said “okay.” This act can be seen as misleading police officers, who were likely told by dispatch that Zimmerman would be waiting for them to arrive before doing anything further. This act is likely in violation of Fla. Stat. § 843.06, which makes the “neglect or refusal to aid peace officers” “in the preservation of the peace” unlawful. Zimmerman’s false compliance with the order may have delayed the response time of the dispatched officers and been the reason why the police were unable to respond to Zimmerman’s call in time to save Trayvon’s life. Arguably, Zimmerman’s actions show neglect to assist a peace officer and thus could qualify as unlawful acts that will exclude Zimmerman from the protection of Fla. Stat. § 776.013(1).

Justice for Blacks in Florida: Repeal the Stand Your Ground Statute

I would like to start this section by clarifying two points. First, Florida is not the only state to have a version of the “Stand Your Ground” statute. According to the above-mentioned piece by Gov. Granholm, who describes the statute as “part of the American Legislative Exchange Council (ALEC)’s cluster of pro-NRA bills that shot through legislatures in the past few years”, Florida is only one of 17 states to have a statute of this kind. Secondly, studies suggest that it is very possible for Zimmerman to be a rational, tolerant, even intelligent, person and still to have reacted in the manner that he did. Many people have labeled Zimmerman a racist and even called him sadistic for his response to an innocent young boy. Sadly, while this may be true for Zimmerman, it does not have to be. Due to the freedom that this law opens up for people to act upon their fears, which may be based on their predisposition to certain opinions, I believe this law should be repealed immediately. Every minute that this law and laws like it remain on the books another Black person’s life is in jeopardy.

Guns Breed Violence

In a piece entitled “Holding a Gun Influences You to Think Others are Armed,” David DiSalvo discusses psychological research that suggests Zimmerman may have reasonably believed that Trayvon was armed. As the title of the piece indicates, James Brockholm’s study, which will be published in the upcoming edition of Journal of Experimental Psychology, supports the idea that the possession of a gun will influence your opinion of whether those around you are armed. Brockholm’s conclusion is that a person’s ability to act upon certain impulses can “bias their recognition of objects… in dramatic ways.” In the study, individuals holding toy guns were more likely to believe a person had a gun than those who were holding a ball and who simply had guns in the room, but not in their hand. The article describes this as the “blending of perception and action representations” which cause those holding guns to believe others are too.

The statute and others like it (e.g. Wisconson’s Castle Doctrine under which a homeowner recently shot and killed 20-year-old, unarmed Bo Morrison, without being charged) is meant to provide a means for people to protect themselves when actually threatened. Based on Brockholm’s research, the statute is actually allowing people to act upon perceived threat that is automatically enhanced by their ability to act against the threat. This research supports the idea that individuals with guns are likely to act frequently because they can act, and not because there is an actually threat. In Bo’s case, his hands were both in the air. In Trayvon’s case, he was walking with a cell phone, an Arizona Ice Tea, and Skittles. Neither youth was armed. Neither was attempting to harm anyone. But two lives are lost, and importantly, two men have taken a life because they were able to, not because they had to. These statutes encourage violence by giving gun holders the right and encouraging them to “meet force with force” when the force they perceive will always be equal to the force they are capable of exerting themselves. These types of laws should be repealed immediately in order to prevent more innocent people from losing their lives and others from taking lives.

People Focus on Blacks when on the Look-out for Criminal Activity

Recently, I took a photograph with some of my Black classmates at Harvard Law School. We wore hoodies and held signs asking “Do we look suspicious?” Unfortunately, research completed by Jennifer Eberhardt, Valerie Purdie, Phillip Goff, and Paul Daves in 2005 concludes that for many people the answer to that question is yes. “Seeing Black: Race, Crime, and Visual Processing” asserts that stereotypes are bidirectional. The article states:

the mere presence of a Black man…can trigger thoughts that he is violent and criminal. Simply thinking about a Black person renders these concepts more accessible and can lead to misremember the Black person as the one holding the razor. Merely thinking about Blacks can lead people to evaluate ambiguous behavior as aggressive, to mis-categorize harmless objects as weapons, or to shoot quickly . . . .

The studies show that not only does thinking about Blacks make people think of crime, but thinking about crime makes people think of Blacks. These studies were intentionally done with both civilians and police officers. The officers were as susceptible to this association. Importantly, the study showed that when one is told to look out for crime, their visual attention focuses on Black faces. They may thus unconsciously avoid criminal activity of non-Black actors. For instance, when experimenters asked police officers “Who looks criminal?,” the officers choose Black faces more often than White faces. The study makes it clear that racial animus is not required. The association is automatic and is even sparked in Blacks and others minorities.

Based on this research, Zimmerman may have associated Trayvon with criminality without having any negative opinions of Blacks. As a neighborhood watchman put on guard to look out for crime, he was likely looking for Blacks. Zimmerman was attempting to crack down on several robberies that had occurred in his neighborhood, and the possibility of criminal activity was salient in his mind, when Trayvon walked innocently by. Zimmerman may have reasonably believed that Trayvon was about to engage in unlawful behavior, but this belief was based on stereotypes and not supported by what was actually occurring. Section 1 of the statute protects people who seek out criminals and prevent their crimes from being completed. As people often unconsciously associate African Americans with crime, they may seek out African Americans engaging in ambiguous behavior percieve it as criminal. Acting upon this perception, they may attack (as Zimmerman did), under the protective shield of the Stand Your Ground Statute, leading to the harm of either themselves or innocent individuals. Based on this research it is clear that the first section of the statute puts a target on Blacks.

Implications

The implications of the research that I have outlined in this section are that people who carry guns and seek out criminal activity will be searching for Blacks and will automatically associate ambiguous behavior with criminal activity. Laws like the “Stand Your Ground” statute give these individuals the right to act upon their perception and harm these Black people regardless of what they are doing. This means that Blacks in such situations will likely have no control over being shot or attacked. Even worse it means that individuals will be searching for Blacks and may unconsciously overlook true criminal activity in an attempt to find images that support their perception. We should not provide support for individuals to act upon irrational conclusions that are not supported by the circumstances. This does not mean that there should be no protection of individuals who respond reasonably to imminent danger, but we should require their perception to be supported by fact and not stereotype and thus require them to be able to connect their fear to something more than the person’s race. We should deem this on a case by case and remove the blanket approval of such behavior. People should be instructed to call police when observing unlawful behavior or to attempt to retreat when in fear of being attacked. Thus the statute should be repealed and self-defense should return to being a defense of murder, and not a presumption of innocence that must be rebutted.

Conclusion

What happened to Trayvon Martin is an all too familiar story to many Blacks. We are profiled regularly based on stereotypes that we have no control over. As many of us mourn Trayvon’s death and remember many of our other brothers and sisters who have fallen victim to racial stereotyping, there is a concurrent legal movement attempting to shed some hope on the issue by bringing charges against Zimmerman. This movement should also focus on repealing the Florida statute. Once these actions are taken, we will be one step closer to Justice for Trayvon.

*I would like to thank Anisha Queen, David Korn, James Smith, and Professor Jon Hanson for their assistance and inspiration with this piece.

In my last post on the Trayvon Martin shooting, I suggested that the dispositionist narratives being offered by many in the media might be missing the real story of why this tragedy happened. Indeed, it might come down to “a toxic combination of negative stereotypes (linking blacks and crime) and a culture increasingly encouraging private law enforcement.” (The focus of this law review article.)

This suggests that the debate taking place over the case perhaps ought to be shifted to the implicit biases of private citizens engaged in “policing” activities. To this end, I thought it was worth introducing some fascinating new research by Jessica Witt and James Brockmole to be published in the upcoming issue of the Journal of Experimental Psychology: Human Perception and Performance. According to a Notre Dame press release focused on the paper,

Wielding a gun increases a person’s bias to see guns in the hands of others, new research from the University of Notre Dame shows.

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. . . .

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In five experiments, subjects were shown multiple images of people on a computer screen and determined whether the person was holding a gun or a neutral object such as a soda can or cell phone. Subjects did this while holding either a toy gun or a neutral object such as a foam ball.

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The researchers varied the situation in each experiment — such as having the people in the images sometimes wear ski masks, changing the race of the person in the image or changing the reaction subjects were to have when they perceived the person in the image to hold a gun. Regardless of the situation the observers found themselves in, the study showed that responding with a gun biased observers to report “gun present” more than did responding with a ball. Thus, by virtue of affording the subject the opportunity to use a gun, he or she was more likely to classify objects in a scene as a gun and, as a result, to engage in threat-induced behavior, such as raising a firearm to shoot.

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“Beliefs, expectations and emotions can all influence an observer’s ability to detect and to categorize objects as guns,” Brockmole says. “Now we know that a person’s ability to act in certain ways can bias their recognition of objects as well, and in dramatic ways. It seems that people have a hard time separating their thoughts about what they perceive and their thoughts about how they can or should act.”

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The researchers showed that the ability to act is a key factor in the effects by showing that simply letting observers see a nearby gun did not influence their behavior; holding and using the gun was important.

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“One reason we supposed that wielding a firearm might influence object categorization stems from previous research in this area, which argues that people perceive the spatial properties of their surrounding environment in terms of their ability to perform an intended action,” Brockmole says.

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For example, other research has shown that people with broader shoulders tend to perceive doorways to be narrower, and softball players with higher batting averages perceive the ball to be bigger. The blending of perception and action representations could explain, in part, why people holding a gun would tend to assume others are, too.

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. . . .

All of this raises the possibility that the tragic shootings of unarmed men like Trayvon might reflect the mistaken determination by the shooters that the victim posed a lethal threat caused, in part, by the simple act of the shooter carrying a gun.

Various theories have been advanced to explain how Trayvon, an unarmed African-American teenager, was shot in the chest by a neighborhood watch captain in a gated community. Some have focused on the potential bad disposition of the shooter, while others have cast Trayvon as a potential aggressor. But the most compelling explanation may relate to the impact of implicit racial bias.

Indeed, the tragedy of this case may ultimately come down to a toxic combination of negative stereotypes (linking blacks and crime) and a culture increasingly encouraging private law enforcement.

African Americans face a significant and menacing threat, but it is not the one that has preoccupied the press, pundits, and policy makers in the wake of several bigoted murders and a resurgent white supremacist movement. While hate crimes and hate groups demand continued vigilance, if we are truly to protect our minority citizens, we must shift our most urgent attention from neo-Nazis stockpiling weapons to the seemingly benign gun owners among us – our friends, family, and neighbors – who show no animus toward African Americans and who profess genuine commitments to equality.

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Our commonsense narratives about racism and guns – centered on a conception of humans as autonomous, self-transparent, rational actors – are outdated and strongly contradicted by recent evidence from the mind sciences.

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Advances in implicit social cognition reveal that most people carry biases against racial minorities beyond their conscious awareness. These biases affect critical behavior, including the actions of individuals performing shooting tasks. In simulations, Americans are faster and more accurate when firing on armed blacks than when firing on armed whites, and faster and more accurate in electing to hold their fire when confronting unarmed whites than when confronting unarmed blacks. Yet, studies suggest that people who carry implicit racial bias may be able to counteract its effects through training.

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Given recent expansions in gun rights and gun ownership – and the hundreds of thousands, if not millions, of private citizens who already use firearms in self-defense each year – this is reason for serious concern. While police officers often receive substantial simulation training in the use of weapons that, in laboratory experiments, appears to help them control for implicit bias, members of the public who purchase guns are under no similar practice duties.

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In addressing this grave danger, states and local governments should require ongoing training courses for all gun owners similar to other existing licensing regimes. Such an approach is unlikely to run into constitutional problems and is more politically tenable than alternative solutions.

This Article furthers our understanding of the substantive value of women judges by analyzing a subset of the research on this topic. It offers a macro-level review of the empirical research done on judges’ gender in U.S. federal courts and how a judge’s gender affects the outcomes in employment discrimination cases, a research area that has attracted considerable empirical analysis. Employment discrimination is also a major subject area of litigation in the federal courts, highlighting its importance and also providing ample databases of cases to study. Thus, this comparatively rich source of research makes it possible to draw conclusions with a clarity that would not be possible if we were comparing judicial decision making in diverse court venues or legal subjects.

To lay the groundwork for the macro review, this Article briefly identifies factors to consider when studying empirical research. A macro review of the empirical research on the relationship between judges’ gender and the outcome in employment discrimination cases follows. This macro review is based on fourteen research studies, a surprisingly large number given the relatively short period in which researchers have actively engaged in this particular inquiry. This macro review focuses on illustrative studies on (1) sex-based discrimination cases, (2) employment discrimination cases more generally, and (3) non-gender-specific employment discrimination cases such as race-based discrimination cases.

This Article provides a status report on the reasonably clear conclusions that can be drawn from current empirical evidence in this area. To the extent that there is a difference between the way female judges and male judges resolve legal cases, the frequent hypothesis is that those differences would most likely appear in employment discrimination, particularly sex discrimination, cases. This macro review largely supports that hypothesis. Thus, it concludes that increasing gender diversity on the bench makes a substantive difference in how these kinds of cases are resolved. As the subject of the cases moves away from sex discrimination, however, the review of research indicates that the relationship of the judges’ gender to case outcomes is less predictable.

As someone who was better at English and history than math and science in high school, what I chose to study in college was partly an effort to shy away from the latter fields and take refuge in “softer” subjects. “Leave the questions of science to the scientists, I am concerned with justice and morality,” we, who chose humanities, said! These two domains were exclusive — “non-overlapping magisteria” as Stephen Jay Gould might say. No meaningful dialogue between the disciplines was possible or necessary.

This attitude, however, is lazy and destructive — or at best, hopelessly antiquated.

The scientific study of human behavior is shedding new light on our actions and inner life. To ignore these insights is not just a mistake. It is criminal.

I’m on our school’s mock trial team and have done mock trial for seven years now. There was a point at the beginning when I really felt that I was crusading on the side of righteousness in a system optimized for delivering justice. But eventually, I came to realize the solutions being offered in the courtroom simply could not get to the heart of the matter in the way science could. This realization came not from inside a courtroom, but rather from a brain scientist writing in a magazine.

In an article in The Atlantic, “The Brain on Trial,” David Eagleman makes the case that we must wade out of the swamp of the medieval machinations of our legal system — obsessed with the ancient and largely useless preoccupation with assigning blame.

He cites a seemingly straightforward pedophilia case. Eagleman describes the case of a 40-year-old man who “developed an interest in child pornography” and began to make “subtle sexual advances toward his prepubescent stepdaughter.” Eventually he was sent to prison. It was only after the discovery and successful removal of a tumor in his brain that he was able to abandon his pedophilia. Eagleman explains, “When your biology changes, so can your decision-making and your desires. The drives you take for granted… depend on the intricate details of your neural machinery.” Eagleman argues that “we can build a legal system more deeply informed by science, because when modern brain science is laid out clearly, it is difficult to justify how our legal system can continue to function without taking what we’ve learned into account.”

But, David Eagleman is a neuroscientist. Of course he would be inclined to make such a grandiose claim for his discipline. Well, we are hearing the same calls from within the law.

Jon Hanson is Law Professor at Harvard. He has a bachelor’s degree in Economics and a degree in law. Yet, eventually his studies in law — and specifically the tobacco industry — led him to abandon this field for the study social psychology, social cognition and other mind sciences.

He has since founded “The Project on Law and the Mind Sciences” at Harvard Law School and advocates for his version of the theory he calls “situationism.” As though it were coming straight from the mouth of Eagleman, Hanson writes that situationism “is premised on the social scientific insight that the naïve psychology… on which our laws and institutions are based is largely wrong. Situationists… seek first to establish a view of the human animal that is as realistic as possible before turning to legal theory or policy. To do so, situationists rely on the insights of scientific disciplines.”

And those insights are impossible to ignore. Take the MAO-A gene. Having a certain form of this gene (the low MAO-A gene), when combined with childhood mistreatment, significantly increases your chances of becoming violent. Yet, I have only ever heard of one case where such evidence was even up for discussion. In response to that evidence, the D.A. said, “The more of this information that you put before a jury, the [greater the] chances of confusing them.” In other words, the claim is not that such evidence is irrelevant, but rather we are too stupid to handle it. How condescending and pessimistic. Even the prosecution’s rebuttal expert claimed “it’s way too early to use this research in a court of law.” If we are ever to progress morally and socially we cannot afford to hold such views.

Not just our legal system, but our political system too could use an injection of scientific reasoning. Many political claims are testable scientific hypotheses and ought to be treated as such. To support the “war on drugs,” for example, under the claim that it reduces crime and drug use is to make a scientifically testable and falsifiable hypothesis. Of course, the data is messy and experiments hard to come by, but the very act of framing these as scientific questions will help us hack through this choking epistemic relativism in which everyone is entitled to an opinion by virtue of the fact that their justification may correspond to a possible version of reality. The world is not essentially unknowable. And the tools of science can help us peer into the eyes of reality. And from that reality, we should build our society.

I’m not worried that we run the risk of ignoring science as a great tool in our legal system, political debates or moral reasoning. Its encroachment into these domains is inevitable. The question is how quickly we’re going to embrace it rather than resist it at the cost of progress. With great gusto and speed, not only must scientists become lawyers, politicians and preachers but lawyers, politicians and preachers must become scientists.

Harvard Law School just published an interview with Jon Hanson. We’ve posted it in full below.

Director of the Project on Law and Mind Sciences at Harvard Law School (PLMS), Professor Jon Hanson has long combined social psychology, economics, history, and law in his scholarship. After PLMS hosted several conferences featuring leading mind scientists and legal scholars, Hanson collected the work of many of the contributors in a book he edited, “Ideology, Psychology, and Law” (Oxford University Press). [Introductory chapter available, here].

In the following Q&A, he speaks about the new book, the connection between law and mind sciences, and his own work in a field that has grown rapidly over the past 20 years.

What sparked your interest in the study of mind sciences and the law?

My interest has evolved through several stages. Although I studied economics in college, I did so with special interest in health care policy, where the life-and-death decisions have little in common with the consumption choices imagined in neoclassical economics. Purchasing an appendectomy through insurance has little in common with buying a fruit at the market.

After college, I spent a year studying the provision of neonatal intensive care in Britain’s National Health Service, attending weekly rounds with neonatologists at London hospitals, meeting with pediatricians in rural English hospitals, interviewing nurses who were providing daily care for the infants, some of whom were not viable, and speaking with parents about the profound challenges they were confronting. Those experiences strengthened my doubts regarding the real-world relevance of basic economic models for certain types of decisions.

In law school, I studied law and economics, but tended to focus on informational problems and externalities that had been given short shrift by some legal economists at the time. After attending a talk by, and then meeting with, the late Amos Tversky, I became an early fan of the nascent behavioral economics movement.

It wasn’t, however, until I spent a couple of years immersed in cigarette-industry documents in the early and mid 1990s that I felt the need to make a clean break from the law’s implied psychological models and to turn the mind sciences for a more realistic alternative.

What was it about the cigarette documents that had that effect?

Well, they made clear that the tobacco industry articulated two views of their consumers – an inaccurate public portrayal, and a more accurate private view.

The first, which the industry conveyed to their consumers and to lawmakers, was of smokers who are independent, rational, and deliberate. Smokers smoke cigarettes because they choose to, because smoking makes them happier, even considering the risks. The industry thus gave consumers a flattering view of themselves as autonomous, liberated actors while assuring would-be regulators that there was no need to be concerned about the harmful consequences of smoking. Smokers were, after all, just getting what they wanted.

The second view of the consumer, which was evident in the industry’s internal documents, was of consumers as irrational, malleable, and manipulable. The industry’s confidential marketing strategy documents, for instance, made clear that the manufacturers theorized and experimented to discover how to target, persuade, lure, and chemically hook young consumers to take up and maintain the smoking habit. That internal understanding of consumers had nothing in common with the industry’s external portrayals.

I came to the realization that, unfortunately, the latter view of the human animal is far more accurate and, furthermore, that failure to understand the actual forces behind human behavior may be contributing to injustice.

How did that realization influence your research?

In the late 1990s, I put my writing down and devoted a couple of years to learning what I could about the mind sciences – social psychology, social cognition, cognitive neuroscience, and the like. Those fields, coincidentally, were blossoming with new theories, new methodologies, and new findings and insights, most of which created challenges to the fundamental assumptions in law and legal theory.

What were some of those insights?

To keep things simple, I’ll boil them down to two big ones.

First, mind scientists had learned that most people in western cultures operate with a naïve and commonsensical model of human psychology that presumes that an individual’s actions reflect a stable personality or disposition and little else. From that perspective, people are presumed to be in control of, and responsible for, their behavior and its consequences.

By the way, that’s the same model of human behavior that is employed in law and conventional legal theory. And it’s the same model that the tobacco industry actively promoted.

The second big insight was that that model of human behavior is fundamentally wrong. People are moved less by a stable disposition and more by internal and external forces that generally go unnoticed in our causal stories. The errors go beyond our causal assessments of other people’s behavior; we confuse and deceive even ourselves, believing our own reasons, when social science reveals those reasons often turn out to be mere confabulations.

What does that mean for the law?

Exactly. That’s the big question. My briefest answer is: a lot. The book is one place where the contributors and I begin to sketch some of the answers.

Given the large gap between what the law assumes and what the mind sciences have shown to be true, my initial goal has been to understand the breadth and contours of that gap and to develop a better understanding of the psychological and contextual forces behind human behavior. I have resisted the strong urge to focus on only those psychological tendencies that can lead to straightforward but narrow implications for law.

Having said that, abandoning the familiar, if wrong, conception of human behavior is daunting and unsettling; it calls for establishing new knowledge structures and being open to some humbling truths about ourselves and some uncomfortable truths about our justice system.

I expect that several generations of lawmakers, legal academics, and lawyers will be grappling with the implications of what mind scientists are discovering about human behavior. Indeed, they will have to do so, if we are ever going to find meaningful solutions to many of our thorniest policy challenges.

Is this entirely new terrain?

I shouldn’t give the impression that I am alone in the wilderness. The approach I’ve taken has its origins in the legal realism movement, and there is actually significant overlap with parts of more recent legal theoretic schools of thought, from law and economics to critical legal studies.

Furthermore, there are other scholars around the country exploring this terrain, and I have been extraordinarily lucky to work with a number of remarkable students over the years, including Melissa Hart, Doug Kysar, David Yosifon, Adam Benforado, Michael McCann, and Mark Yeboah. Most of those students have gone on to make their own path-breaking contributions to law and mind sciences.

Can you say more about how the field has evolved and your involvement in it over the last 20 years?

Well, 20 years ago, only a small but important corner of psychology known as “decision theory” or “behavioral economics” was getting much attention among legal theorists. Roughly, the research and evidence in that field disputed the “rationality” assumption of the “rational actor” model. I co-authored several articles arguing that those insights suggested that market actors could, would, and do manipulate the risk perceptions of consumers.

A decade ago, I co-wrote a pair of law-review articles (“The Situation” and “The Situational Character”) introducing some of the broader insights of mind sciences and speculating on some of their implications for law. The articles were among the first of their kind, and contested even the “actor” portion of the “rational actor” model. At the time, many readers from legal academia found the research we reviewed to be foreign and hard to fathom.

Five years ago, I began the Project on Law and Mind Sciences. With then-Dean Kagan’s support, some technical know-how from Michael McCann, and the aid of many outstanding students, I set up a website and blog and began holding annual conferences intended to help bridge the gap between the law and the mind sciences. In the meantime, numerous books have popularized the mind sciences, and several new law school programs and projects have been established around the country reflecting and reinforcing this burgeoning interdisciplinary approach.

As of today, the mind sciences are, well, hot. There is now almost too much scholarship for me to keep up with, judges are beginning to cite such research in their opinions, and student groups are springing up in law schools, including the vibrant Student Association for Law and Mind Sciences (or “SALMS”) at Harvard Law School. Every year, I hear from more 1Ls who tell me they chose Harvard Law School because of the exciting work that we’ve been doing.

Are other members of the HLS faculty now employing mind sciences in their work?

Absolutely. Alan Stone has been writing and teaching about the law and psychiatry since the 1960s. Cass Sunstein and Christine Jolls, when here, were prominent leaders of the economic behavioralism movement. Several other members of the faculty employ mind sciences in elements of their scholarship and teaching. Lani Guinier, Bob Bordone, Martha Minow, Duncan Kennedy, Charles Ogletree, Bob Mnookin, Larry Lessig, Diana Feldman, Bruce Hay, Yochai Benkler, Glenn Cohen, and David Cope come to mind, and I’m surely forgetting some. Among our visitors this year, Dan Kahan and Martha Chamallas are prominent leaders in this interdisciplinary approach.

Many of us are interacting more often and more collaboratively with mind scientists in other departments of this University and beyond, and I would be surprised if we didn’t add a social psychologist to our faculty in the next decade, as other law schools have.

Your book has more than 20 contributors representing different disciplines. Does their work share a common theme?

First, let me emphasize that the book reflects the work of many students and my assistant, Carol Igoe, who helped organize the conferences on which much of the book is based and who helped in the initial editing stages as part of a seminar that I taught.

To your question, I need to be quite abstract to locate one common theme. If there is a single thread running throughout the book, it is that “how we think” affects “what we think” about law. Many of the contributors – social psychologists, political scientists, legal scholars among them – also consider the effects of “what we want to believe” on “how we think.”

More concretely, some authors examine the implications of the dispositionist conception of the person for the law. Others scrutinize and challenge the ideological premises of prominent legal goals, including utilitarianism and instrumentalism. Some consider the harmful effects of the “free market” ideology. Others look at the implicit motives underlying political ideologies – that is, left and right – while a few summarize evidence regarding the effects of political ideology on judicial decision-making. That’s a sample.

You write that the legal system is built on a dubious ideological framework. How so?

There are several ways in which that is true. Construing “ideology” broadly to refer to shared understandings of human behavior, I’ll answer by echoing what I’ve already highlighted. The legal system presumes that a person’s behavior is the manifestation of little more than a stable set of preferences, combined with a given supply of information, activated by the person’s will. Such perceived truths about what makes people behave as they do shape beliefs about why some groups are advantaged or disadvantaged or about how well certain systems or institutions operate. Unfortunately, those shared understandings are often incorrect.

How do ideology and psychology influence judicial decision making?

That’s another great question, which calls for a bigger answer than I can muster here. What I can say is that there seems to be little disagreement among observers of the legal system that judicial decision making is influenced by ideology. Although some point to Roe v. Wade while others point to Citizens United as their exemplar, the disagreement is over when and how judges are swayed by ideology.

Social psychology and social cognition help us see that there is no escaping the influence of ideology, any more than a person can speak without an accent. Although we tend to hear the accents and perceive the ideologies of those who don’t share our own, we all have both. So ideology is inescapable; pretending that we operate outside of ideology probably makes us more, not less, subject to its biasing influence.

More important, mind scientists have discovered some of the implicit motives and situational factors that push us toward one ideology or another, including political ideologies or legal-theoretic ideologies.

Will an awareness of mind sciences help an attorney in practicing the law?

I hope so.

Having an awareness of the power and effects of psychology and ideology on the law, a lawyer can better predict the outcomes of cases and more ably persuade jurors or judges to see a case their way.

An imperfect analogy is to a doctor who understands the underlying causes of a disease and not simply its symptoms. A lawyer who understands what is moving the law is like the doctor who understands the disease and its processes. Such a lawyer can be effective in taking on the tough, novel cases on the frontiers of the law.

Understanding the remarkable insights being generated by mind scientists similarly can help lawyers to understand and work with their clients or even to recognize and articulate injustices that might otherwise be missed.

My own teaching reflects my strong belief that law students will make better lawyers if they learn some psychology. At the very least, they will learn something about themselves.

That’s the implication of a newly published study, which found wearing a white lab coat — a piece of clothing associated with care and attentiveness — improved performance on tests requiring close and sustained attention. Importantly, the effect was not found when the garment in question was identified as a visual artist’s coat.

“The clothes we wear have power not only over others, but also over ourselves,” Northwestern University scholars Hajo Adam and Adam Galinsky write in the Journal of Experimental Social Psychology. While much research has looked at how our wardrobe influences the way we’re perceived, their study examines its impact on our own thinking and behavior.

Adam and Galinsky call this internal dynamic “enclothed cognition.” That’s a play off the term “embodied cognition,” a line of research that examines the ways bodily sensations influence our thoughts and emotions.For instance, a 2010 study found assuming a body position connoting power leads people to feel and act more confident, even raising testosterone levels.

Could wearing items of clothing that have specific symbolic meaning have a similar effect? To test their thesis, the researchers chose a lab coat, since it is “the prototypical attire of scientists and doctors. Wearing a lab coat thus signifies a scientific focus (and conveys) the importance of paying attention to the task at hand and not making errors.”

The first of their series of three experiments featured 58 undergraduates, half of whom wore a disposable white lab coat. (Participants were told their predecessors had worn these jackets during an earlier round of the study to protect their clothing from construction-related dust. They were asked to put on the garments so that everyone took the test under identical conditions.)

Selective attention was measured by a Stroop task, the classic test in which participants are instructed to name the color of a word flashed on a computer screen, while ignoring the word itself.

Twenty of the 50 words were presented in incongruent colors, such as the word “red” spelled out in green letters. On those confusing items, people wearing the lab coats made around half as many errors as their peers.

But a white coat can mean different things to different people. To address that issue, the researchers conducted an experiment featuring 99 students. One-third were asked to wear what was identified as a medical doctor’s coat, while another third wore an identical jacket that was described as the sort of attire worn by a visual artist while he or she is painting.

The others wore their normal clothing, but a coat described as the sort M.D.s wear was displayed on a desk in front of them. As the experiment began, they were asked to write a short essay about the specific, personal meaning such a coat has for them.

All were then asked to complete four visual-search tests that featured two nearly identical pictures placed side by side. There were four minor differences between the two images; participants were instructed to find the discrepancies and write them down as quickly as possible.

Those told they were wearing a doctor’s coat found more differences than those told they were wearing a painter’s coat. Since they all took about the same amount of time to finish the test, the researchers attributed their higher scores to “heightened attention” rather than simple persistence.

So wearing the simple garment focused their minds, but only when it was associated with medicine rather than artistic expression. Those who had looked at and thought about the doctor’s coat, but didn’t actually wear one, scored in between the other two groups.

“The main conclusion that we can draw from the studies is that the influence of wearing a piece of clothing depends on both its symbolic meaning and the physical experience of wearing the clothes,” Adam and Galinsky write. “There seems to be something special about the physical experience of wearing a piece of clothing.”

For more on the situation of eating, see Situationist contributors Adam Benforado, Jon Hanson, and David Yosfion’s law review article Broken Scales: Obesity and Justice in America. For a listing of numerous Situaitonist posts on the situational sources of obesity, click here.

On his blog, The Natural Unconscious, Situationist Contributor John Bargh has posted a long response to an article written by a group of social psychologists who were unable to replicate one of Bargh’s classic studies. Here’s the opening paragraph of Bargh’s post:

Scientific integrity in the era of pay-as-you-go publications and superficial online science journalism. What prompts the return of the blog is a recent article titled “Behavioral Priming: It’s All in the Mind, but Whose Mind?” by Stéphane Doyen, Olivier Klein, Cora-Lise Pichon, and Axel Cleeremans. The researchers reported that they could not replicate our lab’s 1996 finding that priming (subtly activating in the minds of our college-age experimental participants, without their awareness) the stereotype of the elderly caused participants to walk more slowly when leaving the experiment. We had predicted this effect based on emerging theory and evidence that perceptual mental representations were intimately linked with behavioral representations, a finding that is very well established now in the field (see below). Following their failure to replicate, Doyen et al. went on to show that if the experimenter knew the hypothesis of the study, they were able to then find the effect. Their conclusion was that experimenter expectancies or awareness of the research hypotheses had therefore produced the effect in our original 1996 study as well—in other words, that there was no actual unconscious stereotype effect on the participants’ behavior.

Five years ago Jon Hanson and Michael McCann wrote and published the following post about Joseph Kony as part of a series on the the situational source of evil. In light of the attention Kony is now getting (see Youtube video, “Kony 2012,” here or at bottom of this post), we thought it might be worth posting again.

* * *

In Parts I, II, and III of his recent posts on the Situational Sources of Evil, Phil Zimbardo makes the case that we too readily attribute to an evil person or group what should be, at least in part, attributed to situation. This was a key lesson of Milgram’s obedience experiments as well as Zimbardo’s Stanford Prison Experiment. And that lesson, unfortunately, seems similarly evident in far too many real-world atrocities.

There are numerous reasons, some of which those earlier posts highlighted, why the situationist lesson is an unpopular one. This post suggests another.

Think for a moment about the sort of evil that is so grotesquely apparent right now in The Sudan and Uganda, both of which are in the midst of civil wars–wars that have featured indescribably horrific acts, such as villages ravaged by soldiers who chop off limbs of children. Perhaps most harrowingly, the “evil-doers” are often children themselves, many of whom are kidnapped and then conscripted into bands of mutilating marauders.

Joseph Kony’s Lord Resistance Army, for example, is comprised mainly of abducted children who roam northern Uganda, where “many families have lost a child through abduction, or their village . . . [have been] attacked and destroyed, families burned out and/or killed, and harvests destroyed by . . . . the Lord’s Resistance Army.”

The plight of Ochola John, pictured below, exemplifies an all-too-common story: his hands, lips, nose, and ears were cut off by members of the Lord Resistance Army. It is a difficult image to take in (note, we opted against many other more graphic photos).

Such atrocities have led many in Uganda toquestion how children could become evil incarnate:

We don’t understand how Kony could have a child soldier slash a fellow child abductee with a machete or make a group of children bite their agemate with their bare teeth till he bleeds to death.

In searching for answers, some have turned to situationist factors:

It is easy to assume that the person who commits such an atrocity is deranged or even inhuman. Sometimes it is the case. But not always. It is possible for a normal individual to commit an abnormal, sick act just because of the situation s/he finds him/herself in, and the training s/he is exposed to.

How could this happen? Zimbardo’s ten-factor list suggests some of situationist grease that no doubt lubricates the wheels of evil. Kony’s methods and ideology are extreme, to be sure, but they are familiar: saving his country from evil by building a theocracy.

In that way, dispositionism can give way to a weak form of situationism, but only up to a point — a tendency that has elsewhere been called selective situationism or naive situationism. Kony’s evil disposition is the “situation” influencing the impressionable young boys. In the end, we place evil almost exclusively in one or a small number of actors — usually human, but sometimes supernatural. No doubt, Kony is immensely blameworthy, so much so that we, the authors, can scarcely bring ourselves even to suggest that the horrors might have multiple origins, beyond the gruesome actions of the most salient actors involved.

By locating evil ultimately in a person or group, we avoid a disconcerting possibility that there is more to the situation beyond the bad individuals. When evil comes packaged within a few human bodies, it is rendered more tractable, identifiable, and perhaps, in a way, less threatening — very “them,” and very “other.” Such a conception undermines the unsettling possibility that, because of the situation, there may be more “evil actors” behind those that we currently face. Get rid of the bad apples, we imagine, and the rest of the batch will be fine. Perhaps more important, it permits us to ignore the possibility that the barrel may be contaminating. We need not confront any apprehensions that our systems are unjust, the groups we identify with are contributing to or benefitting from that injustice, or that we individually play some causal role in it.

Joseph Kony is said to have abducted 20,000 kids in the last 20 years. But he has done so with minimal resistance from Uganda’s government, and with virtually no intervention from foreign powers.

Is there any line at which we non-salient bystanders of the world, including Americans, begin to bear some share of responsibility for suffering such as that endured by Ochola John? Maybe the answer is “no,” as most of us apparetly presume. But maybe it is “yes,” and maybe that line has already been crossed.

We are not making a foreign policy recommendation here. We are simply highlighting a form of blindness that we suspect influences all policy. That is, dispositionism (and motivated attributions generally) helps us push that line of responsibility toward, if not all the way to, the vanishing point — even if it does little to reduce the atrocities themselves. Dispositionism helps us to see the apple, or perhaps the tree, and to miss the orchard and the forest and, perhaps, ourselves.

There are other examples of that tendency of allowing our attributions toward salient (and often despicable) individuals to eclipse any possibility of a more complex, far-reaching causal story. Our criminal justice system is partially built upon it. Consider, also, the widespread response to Susan Sontag’s infamous New Yorker essay, in which she described the of 9/11 terrorism not as

a “cowardly” attack on “civilization” or “liberty” or “humanity” or “the free world” but an attack on the world’s self-proclaimed super-power, undertaken as a consequence of specific American alliances and actions. . . . And if the word “cowardly” is to be used, it might be more aptly applied to those who kill from beyond the range of retaliation, high in the sky, than to those willing to die themselves in order to kill others. In the matter of courage (a morally neutral virtue): whatever may be said of the perpetrators of Tuesday’s slaughter, they were not cowards.

Regardless of the veracity of Sontag’s claims, many Americans did not want to hear such a non-affirming interpretation in the wake of the terror. She not only implicated American policies but suggested that perhaps the attackers were not as “beneath us” as many had portrayed.

As one of us summarized in another article (with Situationist contributors Adam Benforado and David Yosifon), many conservative commentators responded to Sontag and her claims with predictable rage and disgust (while most moderates and liberals took cover in the safety of silence).

Charles Krauthammer called Sontag “morally obtuse,” while Andrew Sullivan labeled her “deranged.”John Podhoretz claimed that she exemplified the “hate-America crowd,” that out-group of Americans who are “dripping with contempt for the nation’s politics, its leaders, its economic system and for their foolish fellow citizens.” And Rod Dreher really drove home the point saying that he wanted“to walk barefoot on broken glass across the Brooklyn Bridge, up to that despicable woman’s apartment, grab her by the neck, drag her down to ground zero and force her to say that to the firefighters.”

We see ourselves as “just,” and don’t like being “implicated” by clear injustice, a discomfort that is often assuaged by looking for the Evil Actor. But when evil continues, even after the evil individuals have been stopped, perhaps we glimpse one reason why, as George Santayana famously put it, “those who cannot remember the past are condemned to repeat it.”

A bulk of research shows that when people are put in situations where they are expected to fail, their performance does plummet. They turn into different people. Their head literally shuts down, and they end up confirming the expectations. When they’re expected to win, their performance shoots back up. Same person, difference expectations.

In recent years, this phenomenon has been studied in a variety of high-stakes testing situations. One area that has received a lot of attention is in the domain of mental rotation. Out of all the gender differences in cognition that have been reported in psychological literature, 3D mental rotation ability takes the cake. While it’s true that there’s more variability within each gender than across genders, the differences on average between males and females on mental rotation tasks are notably large, in some cases as much as a full standard deviation. (That’s a big difference.)

Psychologists have been trying for years to figure out what factors are causing this difference. And there have been no shortage of speculations, ranging from purely biological explanations, to purely environmental factors, to middle-ground psychobiological views. While a number of different factors surely play a role, recent research suggests that the difference in performance may not have to do so much with actual ability, but perceptions of that ability.

People are aware of the stereotype that females have less aptitude at math and spatial skills than men. In fact, in one study almost half of the female participants endorsed this stereotype. This awareness matters. When asked to imagine themselves as a stereotypical male, females perform much better on a mental rotation task than when they are not given such an instruction. Additionally, when women are asked to report their gender before taking a mental rotation test, they perform much worse on the test than if they identify themselves as a “private college student.” This finding has been explained by “stereotype threat” — the tendency for members of a negatively stereotyped group to underperform on tasks relevant a culturally salient stereotype. According to this account, having females report their gender before taking the mental rotation task makes the cultural stereotype more salient to them, thus causing performance-reducing anxiety.

It’s intriguing how easily these effects can be nudged, for both males and females. In another important study, both men and women completed a test of mental rotation, and were then either informed that men do better on the task, or women do better on the task. The same participants then took another test of mental rotation. Women performed significantly worse after being told men do better on the task, whereas women who were told that women do better on the task performed significantly better at the very same task. Similarly, men performed better after being told that men are better at the task and performed worse after being told that women are better at the task. What we believe is true matters. To a very large extent, our beliefs create our own reality.

But what’s the psychological mechanism at play here? Some stereotype threat researchers have proposed that confidence is playing a key role here. Perhaps the stereotype threat is impacting confidence, and it is this decrease in confidence that is impacting performance. To test whether confidence explains the gender difference in mental rotation performance, Zachary Estes and Sydney Felker conducted four recent experiments. They administered the most common test of mental rotation, the Mental Rotations Test (MRT). In this test, participants are presented with one standard figure and four alternative figures. Two of the alternative figures are rotated versions of the standard figure, whereas the other two are mirror images of the standard figure. Here’s an example:

Their findings are quite striking. First it should be noted that confident people, regardless of their gender, tended to be more accurate. So confidence matters for everyone. They did find statistically significant gender effects though. Consistent with prior research, males on average were more confident and more accurate than women on the mental rotation test. Note these are only averages, there were women who were more confident and performed better than men. At any rate, when confidence was taken into account, the gender difference in mental rotation scores almost completely evaporated. This is quite impressive, considering there are very few studies showing that one variable can completely account for this very large gender difference.

Of course, it’s still not super clear whether it’s really confidence, and not mental rotation ability, that is causing the gender difference in mental rotation performance. To get to the bottom of this, the researchers manipulated confidence, keeping everything else the same. The way they manipulated confidence was quite clever. The way the task is typically administered, participants can omit responses. Research does show that females tend to offer fewer responses than males on the Mental Rotations Task. The researchers wondered whether the possibility of omitting responses makes confidence an important factor in performing on the task. When participants aren’t required to respond, their confidence becomes relevant to the task, but when participants are required to respond, confidence should have less of an effect on performance since the person doesn’t have to evaluate their confidence on each trial.

To test this possibility, one group took the Mental Rotations Test, but were allowed to omit trials whenever they wanted. In contrast, another group was required to respond on every single trial. While they found the typical gender difference using the standard instructions, males and females did not differ from each other when they were required to give an answer on each trial. These findings support the idea that the gender differences on this task is specifically related to confidence, not ability. Once participants were again required to rate their confidence levels on each trial, a gender difference once again emerged on the task.

Finally, the researchers manipulated confidence prior to the experiment. First they had participants complete a difficult line judgment task. Performance on this task was near chance for both males and females. After completing the task, participants were randomly told either that their performance was above average or it was below average. Then, participants completed the Mental Rotations Task. Regardless of gender, those who were told that their performance on the line judgement task was above average performed better on the mental rotation task than those who were told they performed below average on the task. As they found in their prior studies, males on average outperformed females on the Mental Rotation Task. However, there was no difference in performance between females in the higher confidence group and males in the low confidence group.

Taken together, the researchers conclude that “the sex difference in mental rotation appears to be a difference of performance rather than ability.” Their results are definitely intriguing since confidence explained such a large part of the gender difference in mental rotation performance. Of course, there’s probably no one single cause of the sex difference in mental rotation ability. As the researchers note, few investigations combine multiple levels of analysis. This integration is important.

One potential area of integration is working memory. Working memory reflects the ability to store information in your mind while simultaneously processing or transforming other information. A few years back, I conducted a study that found that spatial working memory, but not verbal working memory, explained the gender difference in spatial ability. I thought these findings were really interesting, as it suggested that the cause of the gender difference was very specific to the storage of spatial information while processing other information, but was not generalized to more general working memory resources. The researchers of the current study cite my study, and speculate that confidence may be related to working memory. I find this suggestion a real possibility. Research does show that stereotype threat reduces the working memory resources available for solving the task at hand. Perhaps many of us — male and female alike — when faced with threatening situations, have decreased confidence, which then lowers the working memory resources specific to the task at hand.

So what can we do as a society to give people more of a chance to display their true colors? The researchers offer the following advice:

Potentially effective methods for achieving this outcome include rejecting the negative stereotype that women have poor spatial skills, encouraging women to view spatial skills as learnable, encouraging females to engage in more spatial tasks, and providing positive feedback when they do so.

Sensible advice, but I think this is sensible advice for just about everyone — male and female — and for every form of ability — math, English, artistic, musical, whatever. So much research now shows the importance of mindset, self-belief and confidence on performance. I look forward to more research that integrates multiple levels of analysis.

So many important questions are still left to answer. What does confidence buy you? . . .

Dr. Lerner’s presentation will address her latest research into the relationship between stress and leadership. Leadership is widely believed to be associated with elevated stress. But if leadership is coupled with a heightened sense of control-which is known to have stress-buffering effects-leadership should be associated with less stress. Using unique samples that included real global leaders, Dr. Lerner found that leaders had lower levels of the stress hormone cortisol than did non-leaders and that higher-level leaders had lower cortisol than lower-level leaders, due in part to differences in sense of control. She will discuss her methodology, findings, and the implications of her work.

Dr. Jennifer Lerner is Professor of Public Policy and Management at the Harvard Kennedy School of Government as well as Director of the Harvard Laboratory for Decision Science. This inter-disciplinary laboratory, which she co-founded with two economists, draws primarily on psychology, economics, and neuroscience to study human judgment and decision-making.

As U.S. prison populations continue to grow and neighborhoods, schools, families, and communities feel the lasting impacts of crime, the restorative justice movement offers alternative responses to crime by seeking to repair the harm done instead of demanding retribution. Restorative justice, which can work both with and outside of the criminal justice system, invites those who are most affected by crime to participate more directly in responding to it and working to make things as right as possible. This panel features several lawyers who work in the restorative justice field and is an excellent opportunity to learn about restorative justice and its relationship to the law, as well as several alternative career options for those interested in criminal justice.

Panelists:

Sujatha Baliga’s work is characterized by an equal dedication to victims and persons accused of crime. A former victim’s advocate and public defender, Sujatha was awarded a Soros Justice Fellowship in 2008 which she used to spearhead a successful restorative juvenile diversion program in Alameda County. As the former Director of Community Justice Works, she expanded and institutionalized the program she began through her Soros Fellowship. Sujatha has served as a consultant to the Stanford Criminal Justice Center, has taught Restorative Justice to undergraduates and law students, and is a frequent guest lecturer at academic institutions and conferences. Today, as a Senior Program Specialist at the National Council on Crime and Delinquency, Sujatha assists communities in implementing restorative justice alternatives to juvenile detention and zero-tolerance school discipline policies. She is also provides technical assistance to the US Attorney General’s Task Force on Childhood Exposure to Violence.

Sujatha earned her A.B. from Harvard and Radcliffe Colleges and her J.D. from the University of Pennsylvania. She had federal clerkships with the Honorable William K. Sessions, III, former Chair of the U.S. Sentencing Commission and with the Honorable Martha Vázquez. An national voice in restorative justice, she was honored as Northeastern University Law School’s Daynard Fellow, and has been a guest on NPR’s Talk of the Nation.

Ora Schub of Chicago’s Community Justice for Youth Institute is known for her work on domestic violence, disability rights, Palestinian solidarity work and human rights. She was formerly a clinical law professor at the Northwestern University School of Law Children and Family Justice Center. Ora also worked as a program director at Access Living, Cook County deputy public guardian and criminal defense attorney. Ora has traveled throughout the United States, Ecuador and Brazil speaking and sharing ideas on restoratives justice and teen dating violence. She has participated in several human rights delegations to the West Bank, Gaza, Kuwait and Lebanon as part of the National Lawyer’s Guild and the National Conference of Black Lawyers delegations. She is a member of the Guild’s LGBT taskforce.